§ 22a-122 — Decision and opinion. Criteria for decision. Findings and determination. Financial responsibility. Service and publication. Appeal.

Connecticut § 22a-122

• Jurisdiction: Connecticut
• Title 22a: Environmental Protection
• Ch. 445: Hazardous Waste

Text

(a) The council shall, within the time specified in subsection (f) of section 22a-119, render a decision upon the record by an affirmative vote of not less than seven council members either granting or denying the application as filed, or granting it upon such terms, limitations or conditions as the council may deem appropriate. The council shall file, with its decision, an opinion stating in full the reasons for its decision. (b) In making its decision, the council shall consider: (1) The impact of the proposed facility on the municipality and affected geographic area in which it is to be located in terms of public health, safety and welfare including but not limited to (A) the risk and impact of accident during transportation of hazardous waste, (B) the risk and impact of fires or explosions from improper storage or disposal methods, (C) consistency of the proposed facility with local and regional land use plans and regulations and the state conservation and development plan in effect at the time the applicant applies to the Commissioner of Energy and Environmental Protection for the environmental licenses, permits, or approvals necessary to construct and operate the facility, and with existing and proposed development in the area, (D) the protection of the public from adverse impacts including but not limited to adverse economic impacts of the facility during its construction and operation and after its operation life, (E) the risk and impact on public and private drinking water supplies; (2) the population density in the area of the proposed facility and its proximity to residential areas; (3) data available under the Superfund Amendments and Reauthorization Act of 1986 concerning permitted and illegal discharges in the geographical area affected by the proposed facility; (4) the proximity of the proposed facility to schools; (5) the availability of other sites; and (6) other criteria consistent with the goal of insuring the maximum safety of the public from potential dangers associated with the siting and the development and management of construction of hazardous waste facilities which may be established by regulation adopted by the permanent members of the council in accordance with the provisions of subsection (c) of section 22a-116 . The permanent members of the council shall adopt regulations in accordance with the provisions of said chapter establishing minimum distances between the active parts of the facility and other land uses. (c) The council shall not grant a certificate unless it finds and determines: (1) A public need and the basis of such need for the facility; (2) the nature of the probable health and environmental impact of the facility including but not limited to those listed in subsection (b) of this section and consideration of the number of persons affected; (3) in the case of a proposed land disposal facility, an explanation of why no other disposal method is more appropriate; (4) every significant single and cumulative adverse effect on and conflict with state policies on (A) the natural environment, (B) the ecological balance, (C) the public health and safety, (D) scenic, historic and recreational values, (E) forests and parks, (F) air and water purity, including impact on present and future sources of water supply; and (5) why such adverse effects or conflicts set forth in subdivision (4) of this subsection are not sufficient for denial of the certificate. Any applicant who withdraws an application submitted under the federal Resource Conservation and Recovery Act, this chapter or the regulations adopted pursuant to subsection (c) of section 22a-449 may not reapply for a certificate for two years from the date of such withdrawal or denial. (d) The council shall not grant a certificate unless the following financial responsibility requirements are met: (1) For the period of facility operation, the applicant shall maintain third party liability insurance for sudden and nonsudden occurrences in an amount fixed by the council in accordance with the federal Resource Conservation and Recovery Act, except that the council may require such insurance in an amount more than that required by said act. Insurance shall be provided by a carrier licensed by the Insurance Commissioner and who evidences at all times the financial resources necessary for licensure. The council may accept other forms of security allowed by the federal Resource Conservation and Recovery Act which the council deems equivalent to third party insurance if such insurance is not reasonably available. Certification of insurance is to be filed annually by the applicant with the council; (2) for the period of closure, the applicant shall provide, prior to operation, a surety bond or other security acceptable to the council in an amount fixed by the council sufficient to pay for the costs of closure. The amount and form of security shall be fixed by the council in accordance with the federal Resource Conservation and Recovery Act. A trust fund shall be established, in accordance with said act, to be financed by yearly payments by the hazardous waste facility operator. The amount paid into the fund shall be fixed by the council so that at the time of closure the fund shall be sufficient to pay the costs of closure. The surety bond or other security may be reduced each year by the amount paid into the trust fund. Deposits into the trust fund shall be made to the State Treasurer and disbursements from the fund shall be made upon authorization of the Department of Energy and Environmental Protection; (3) for the period of postclosure, a trust fund shall be established in accordance with the federal Resource Conservation and Recovery Act to pay the costs of monitoring and maintenance during the postclosure period. The trust fund is to be financed by yearly payments by the hazardous waste facility operator. The amount paid into the fund yearly shall be fixed by the council so that at the start of the postclosure period the fund shall be sufficient to pay the costs of monitoring and maintenance of the facility during the postclosure period. Deposits into the fund shall be made to the State Treasurer and disbursements from the fund shall be made upon authorization of the Department of Energy and Environmental Protection. In the case of a proposed land disposal facility, the applicant shall further provide for a fund or other security for liability for damage during the postclosure period. Deposits into such fund shall be made to the State Treasurer and disbursements from the fund shall be made upon authorization of the Department of Energy and Environmental Protection. The amount of the fund or other security and the manner of financing such fund shall be determined by the council based on the type of facility, the location of the facility and the kind of waste processed by such facility so that at the beginning of the postclosure period the fund or security shall be sufficient to cover the anticipated liability for damages. In the case of a proposed nonland disposal facility, the council may require a trust fund or other security for postclosure liability for damages. In determining the amount to be paid into such fund, the council shall consider the provisions of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P.L. 96-510). To the extent that liability incurred during the postclosure period is to be paid from funds established in accordance with said act, the applicant shall not be required to maintain such fund or other security; (4) the applicant pays the costs, if any, incurred by the state for preparation of an off-site emergency plan for a worst case accident. (e) A copy of the opinion, decision and order shall be served upon each party and a notice of the issuance of the opinion and order shall be published in such newspapers as will serve substantially to inform the public of the issuance of such. The name and address of each party shall be set forth in the decision. (f) In making its decision as to whether or not to issue a certificate, the council shall in no way be limited by the fact that the applicant may already have acquired land or an interest therein or any necessary permits, certificates or orders for the purpose of constructing the facility which is the subject of its application. (g) Any person aggrieved by a decision of the council or any party may appeal therefrom in accordance with the provisions of section 4-183 . See Sec. 22a-6m re review of permit applicant's compliance history.

Legislative History

(P.A. 80-472, S. 9, 14; P.A. 81-369, S. 10, 20; P.A. 82-472, S. 155, 183; P.A. 90-77; P.A. 91-313, S. 3, 5; P.A. 94-205, S. 6; May 25 Sp. Sess. P.A. 94-1, S. 86, 130; P.A. 11-80, S. 1.) History: P.A. 80-472 effective July 1, 1981, with respect to this section; P.A. 81-369 amended Subsec. (b) by adding to criteria for decisions consistent with the state conservation and development plan, impact of the facility on the economy and drinking water supplies, population density considerations and by requiring the council adopt regulations establishing the minimum distance between the facility and other land uses and inserted new Subsecs. (c) and (d) requiring the council to make findings and determinations requiring the applicant to comply with financial responsibility requirements by providing third party liability insurance, a trust fund to pay closure costs, a trust fund for facility monitoring and maintenance during postclosure, and paying for an emergency plan, relettering remaining Subsecs. accordingly; P.A. 82-472 amended Subsec. (b) to provide that the regulations shall be adopted by the council in accordance with the provisions of Sec. 22a-116(c), rather than Ch. 54 of the general statutes; P.A. 90-77 amended Subsec. (b) by adding to criteria for decisions data available under the Superfund Amendments and Reauthorization Act, the proximity to schools and the availability of other sites and amended Subsec. (c) requiring a finding and determination regarding health impact and consideration of the number of persons impacted; P.A. 91-313 amended Subsec. (c) to add an additional requirement that the council find that the applicant has not been subject to a fine or civil penalty during the pendency of the application and to provide that any applicant who withdraws an application may not reapply for two years; P.A. 94-205 amended Subsec. (c) to delete provisions re review of permit applicant's compliance history; May 25 Sp. Sess. 94-1 made a technical change in Subsec. (c) for accuracy, effective July 1, 1994; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011. Cited. 207 C. 706.